Kerala High Court
P. Subramanian And Ors. vs Ramachandran And Ors. on 28 August, 1995
Equivalent citations: AIR1996KER64, AIR 1996 KERALA 64, (1996) ILR(KER) 1 KER 7
Bench: K.G. Balakrishnan, B.N. Patnaik
JUDGMENT Balakrishnan, J.
1. Defendants 1,2 and 5 in O. S. 234 of 1984 on the file of Sub-Court, Ernakulam are the appellants. The suit for partition by the first respondent herein was decreed as prayed for and the appeal is directed against that judgment and decree.
2. Plaintiff, defendants 1, 3 and 4 are brothers and 5th defendant is their sister. They are the children of Parameswara Iyer and Thailambal. Second defendant is the wife of first defendant. The suit for partition was in respect of 6 3/4 cents of property with a building therein owned by Parameswara Iyer and Thailambal. Parameswara Iyer died on 9-9-93 and Thailambal died on 15-5-82. In the plaint, plaintiff alleged the following facts :
Plaintiff is the eldest child of Parameswara Iyer and Thailambal. The plaintiff had passed school final and as he could not pursue his studies due to poor financial situation he left Kerala at the age of 18 in search of some job and that he got a job in Calcutta and he had been sending money to his parents. Defendants 1, 3 to 5 therein were given proper education and defendants 1 and 3 could become graduates and the 4th defendants studied, up to intermediate class and all of them later got employment. Plaintiff continued to make monthly remittance to his parents for meeting household expenses. Plaintiffs parents were residing in a rented building. At the instance of plaintiff, the building in which they were in occupation was available for purchase. Plaintiff sent money for purchasing the property in 1965. Various amounts were sent by drafts. The fifth defendant was given in marriage in 1952 and for that also the plaintiff incurred expenses. Plaintiffs parents were not keeping good health and they were under treatment. First defendant and his wife were not residing along with the parents. They were harassing the parents. Plaintiff retired from service in 1981 and he could come back to Ernakulam only in 1983 November. In 1984, plaintiff talked with the first defendant about division of the plaint schedule property. The first defendant under some pretext or other was evading the subject and on one day plaintiff casually met the original owner, who sold plaint A schedule property to plaintiffs parents. She said that a document was got registered by defendants I and 2 on 16-10-81 and on that day plaintiffs mother was seriously ill and the original owner of the property was sent for and when she came to the residence of the plaintiffs parents, plaintiff's mother was found seriously ill and was not able to talk freely. Plaintiff further alleged that his mother told, that lady that the first defendant had threatened her with harassment and ill-treatment, if she did not do so as dictated by him. Her brother-in-law Sankara Iyer also came to the plaintiffs residence. They thought that the plaintiffs mother would take her last breath soon. Then she saw the first defendant coming to the house along with the Sub-Registrar and few others. A document was also brought by the first defendant. The first defendant then asked the lady to get the thumb impression of the plaintiffs mother. The thumb impression was just affixed and that lady was also required to sign in that document. She did not know what it was. Her brother-in-law Sankara Iyer also signed in that document. Plaintiff was not aware of further details of the documents. Though the plaintiff had visited the house, mother did not say anything about the documents for fear of the first defendant and his wife. Plaintiff with much difficulty, came to know that a Will was allegedly executed by them. Plaintiff obtained a registered copy of the same and he came to know of the contents therein. Plaintiff alleged that his parents could not have voluntarily executed any such document and the alleged Will was vitiated by fraud and coercion by defendants 1 and 2. Plaintiffs parents were made to sign that document by defendants 1 and 2 without making them understand the same. Plaintiff alleged that though the acquisition of the property was with the plaintiffs own funds and the plaintiff could have claimed whole plaint A schedule property for he did not want to enforce such claim and, therefore, filed the suit for partition and prayed possession of 1 / 5 schedule of the plaint schedule property.
3. Defendants 1, 2 and 5 filed a joint written statement denying the allegations in the plaint. It is alleged that the plaintiff discontinued his studies and left his abode according to his free-will and there was no financial difficulty for the plaintiff to continue his studies. The plaintiff was not looking after the parents and other members of the family. He wanted to have his own independent life. Whatever little money he used to send was not sufficient to meet their medical expenses. Parents acquired property very near to plaint A schedule property with their own fund. When the original owner of plaint A schedule property offered the said property for sale, parents sold their property and purchased the same mainly with the funds available with them. The entire consideration was paid to the owner in lump. Plaintiff used to send amounts in the name of parents. Such amounts were being spent for acquiring property in his name. The entire amounts sent by the plaintiff was invested for acquiring landed properties at Vechoor near the residence of 5th defendant. Thus, an extent of 3.75 acres of property was purchased at Vechoor in the name of plaintiff and his wife. In 1975 he purchased property in Ernakulam and he later constructed a building therein. First defendant was away from Ernakulam in connection with his job. His wife and children were staying with the parents. For the treatment of the parents, the entire expenses were met by the first defendant. Plaintiff had not spent Rs. 5,000/- for funeral obsequies of mother. He spent Rs. 1,500/- for the first death anniversary function. Plaintiff was collecting income from the property he had purchased and occasionally the 5th defendant used to send coconuts and other income to the parents, but they were not allowed to take income from this property as alleged by the plaintiff. In the past several years, plaintiff had been living away from Ernakulam and he has no idea about the family life and well-being of the parents. Allegations in paragraphs 24 and 25 of the plaint are not correct. After the death of father, plaintiff came to know that the parents had executed a Will in 1981. Parents had entrusted this document to Sri A. K. Sreenivasan, Advocate. Plaintiff and defendants 1 and 5 went to advocate Sri A, K. Sreenivasan and requested him to read the document. Sri A. K. Sreenivasan came to the house of defendants and read the document. Plaintiff wanted to have a copy of the document and Sreenivasan gave the date and registration number of the document. It was after that the plaintiff obtained a certified copy of the document. Plaintiff did not demand any partition. At the time of execution and registration of the Will, family doctor one Dr. C. K. Balan was present. The parents executed the Will out of their free-will and volition. No body exercised any fraud or coercion.
4. Defendants 3 and 4 filed separate written statements. They supported the plaintiff and claimed 1/5 share each in the property. They contended that the document dated 16-10-1981 did not give any right to defendants I and 2 over the plaint schedule property.
5. The Court below framed three issues. Issue No. 1 was whether the suit properties were liable to be partitioned and under that issue the validity of Ext. B-3 Will was considered and it was held that the contesting defendants failed to establish that Ext. B-3 Will was executed by Parameswara Iyer and Thailambal out of their free-will and they failed to remove the suspicion surrounding the execution of the Will and, hence, Ext. B-3 cannot be held to be legal, proper and valid Will and on the basis of that it was held that the suit properties were liable to be partitioned into 5 equal shares. This finding is challenged in the appeal.
6. We heard appellants' counsel and also counsel for the respondents. The question for consideration is whether the parents of plaintiff and defendants 1 and 3 to 5, namely, Parameswara Iyer and Thailambal had executed Ext. B-3 Will and whether the execution of the same is satisfactorily proved by defendants 1 and 2, who were the legatees under the Will. The Court below has considered the matter and was of the view that there were certain suspicious circumstances surrounding the execution of the Will and those circumstances were not satisfactorily explained by the propounders. The Court also was of the view that the execution of the Will was not satisfactorily proved and that many of the witnesses, who could have thrown some light regarding the circumstances under the Will was executed, were not examined and that the conduct of the parents was such that they would have never executed a Will disinheriting the plaintiff and defendants 3 to 5.
7. It is true that if there is any suspicious circumstances surrounding the execution of the Will, the burden is on the propounder to remove that suspicion and to prove that it was a Will executed without any coercion or undue influence and that the testator had exercised his free-will and that he had sound disposing state of mind. The proof regarding Will was elaborately dealt with by his Lordship Justice Gajendragadkar, as he then was, in H. Venkatachala Iyengar v. B. N. Thimmajamma (AIR 1959 SC 443). This view was later endorsed by another decision reported in Purnima Debi v. Khagendra Narayan, AIR 1962 SC 567. The nature of evidence adduced by the parties is to be examined in the light of the dicta laid down by the Supreme Court in the above decisions.
8. The plaintiff, who is disputing the genuineness of the Will alleged in the plaint that in 1984 he had occasion to meet one of the attestors to the Will, namely, Saradammal and she told him that on 16-10-1981 plaintiffs mother was seriously ill and she could not talk or freely move and, it is further stated that the plaintiff came to know from Saradambal that his mother was being threatened by the first defendant and that she was pressurised to execute a Will. Plaintiff alleged in the plaint that Saradammal told him that the sickly mother, who was about to die, was asked by the first defendant to put her thumb impression and thereafter Saradammal also signed the document. These are the suspicious circumstances alleged by the plaintiff regarding the execution of the Will. It may be noticed that the plaintiff could not adduce any evidence to prove these contentions. The plaintiff did not care to examine Saradambal. When the plaintiff was examined as PW 1, he also did not depose anything about the allegations in paragraph 5 of the plaint. In the chief examination what he deposed was, "............"
(Vernacular matter is omitted .......... Ed.) (Saradammal, who executed Ext. B-l document vaguely told me in January, 1984 that some false documents had been registered and she was not aware of the contents of the same). Evidence of PW I and the non-examination of Saradammal show that the plaintiff had given up his case of suspicious circumstances under which the Will was executed. In the absence of initial evidence on the part of the plaintiff, who disputed the genuineness of the Will, the propounders of the Will need only prove the execution of the Will.
9. On the side of the appellants, DW 1 to 4 were examined to prove the execution of the Will. The evidence of these witnesses clearly establishes that the propounders succeeded in proving the execution of the Will. DW 2 is a Doctor. He deposed that he was treating plaintiffs parents. Parameswara Iyer had filarial disease and his vision was affected by cataract. According to DW 2 there was difficulty for him to read. Thailambal was having asthmatic trouble and DW 2 used to prescribed medicines. D W 2 further deposed that in one evening of October, 1981 he had been to the house of Parameswara Iyer pursuant to a request made by him. Then Parameswara Iyer and Thailambal were present and they told him that they wanted to execute a Will. Their mental and physical condition were good. The first defendant then brought a document writer and the Registrar and one lady by name Saradammal was also present. Parameswara Iyer asked the document writer to read the document. The document was read aloud and DW2 and others heard and understood the contents of the Will. Then Parameswara Iyer and Thailambal signed the document and DW 2 and Saradammal, who were present there, saw them signing the Will., Thereafter DW 2 and Saradammal signed the document in the presence of the Registrar and Parameswara Iyer and Thailambal saw the Will being attested by the witnesses.
10. The evidence of DW 2 was viewed by the Court below with great suspicion. One reason stated by the Court below is that DW 2 is a member of a very affluent family and he could not have any contact with the members of plaintiffs family and he deposed falsely only to help the first defendant, who was his friend. It is also stated by the Court below that DW 4, the Advocate with whom Parameswara Iyer and Thailambal made consultation before the execution of the Will deposed that he was the friend of DW 2 and whereas DW 2 stated that he had no acquaintance with DW 4 and the Court assumed that DW 2 had no respect for truth. It may be noticed that DW 4 did not depose that he was a friend of DW2. According to DW3 he had heard DW 2 and he knew him by sight and this is far from friendship. Moreover, even if the witness commits some mistakes on certain irrelevant points, that is not a ground for complete rejection of the evidence. The evidence of a witness is to be analysed and examined in the light of various other circumstances. DW 2, a reputed doctor, had no reason to depose falsehood. He had been treating both Parameswara Iyer and Thailambal. It is normal that the conduct of the people is such that they would like to execute Will in the presence of their family doctor and that is what has been done in this case also. The evidence of DW 2 satisfactorily proved the execution of the Will.
11. DW 4 deposed that he had no acquaintance with Parameswara Iyer and Thailambal and his typist one Venkita Su-bramania Ayyar brought Parameswara Iyer and Thailambal to his office. They informed DW 4 that they wanted to give their properties to the first defendant and his wife and they wanted to execute a Will. DW 4 had acquaintance with one Prakasan, a document writer. He contacted Prakasan over phone and informed that Parameswara Iyer and Thailambal would come to his office for the preparation of the Will and he must help them in executing the Will, DW 4 further deposed that after about 3 weeks Parameswara Iyer and Thailambal came to his office and gave a Will to him and told that he must keep that Will till their death and thereafter it shall be given to defendants 1 and 2. After their death DW 4 told the first defendant about the Will. The defendants 1, 2 and 2 others came to his office and requested him to divulge the contents of the Will. As the 2nd defendant was not present, DW 4 told that he would -come to their residence and in the evening of that day he went to the house of the first defendant and read the contents of the Will and at that time defendants 1, 2 and 5 and the plaintiff were present. The plaintiff demanded a copy of the Will and D W 4 gave the number and date of registration of the Will and told that he had no copy of the Will.
12. The evidence of DW4 proved that Parameswara Iyer and Thailambal executed the Will after much deliberation. According to DW 4 they had come to his office two or three times. The evidence of DW 4 was also viewed sceptically by the Court below. The evidence of DW 4 is quite natural and we do not find any artificiality in his evidence. It is quite common that people generally consult lawyers on matters concerning preparation of Will. The Court below observed that Venkata Subramania Iyer might have been on inimical terms with Parameswara Iyer on the ground that Parameswara Iyer was formerly residing in a house owned by the father of Venkita Subramania Iyer and from that house they were forcibly evicted. It may be noticed that the incident happened about 35 years back and the Court simply assumed that they were on inimical terms. DW4 had no special interest in this case to depose falsehood. The evidence of DW 4 shows that the executants of the Will were having sound disposing state of mind and that the Will was not brought about by coercion or undue influence.
13. Another important witness is DW 3, the 5th defendant in the suit. She is the sister of plaintiff and defendants 1, 3 and 4. DW 3 was given in marriage and she had been residing at Vechoor near Vaikom about 27kms. away from Ernakulam. DW3 deposed that she was on friendly terms with all her brothers and she had been looking after the affairs of their parents till their death. She also deposed that a week prior to the execution of the Will she received a letter from her mother requesting her to come to Ernakulam. She came to her parents and the mother told that they were going to execute a Will in favour of first defendant and his wife. She further deposed that on the next day of her arrival to the house. Registrar and some others came to the residence and the Will was executed. She is not a witness to the Will. The evidence of D W 3 is a strong piece of evidence to prove the genuineness of the Will. She had no case that her parents were suffering from any sort of mental illness or their faculties were impaired.
14. The evidence of DW 3 also was not appreciated by the Court below in the correct perspective. It is true that she was not present in the house at the time when the Registrar was making registration of the Will in the house. She had gone out to a nearby shop to purchase some articles. That does not in any way affect the credibility of the witness. It may be noticed that DW 3 was looking after the properties of the plaintiff. Plaintiff had purchased 3.75 acres of properties at Vechoor near the residence of DW3. At the time of purchase, plaintiff was working at Calcutta. Plaintiff sent various amounts to DW 3 and she made all arrangements for the purchase and registration of the sale deed. The evidence of DW 3 has got great persuasive effect in this case. It almost conclusively proved the sound disposing state of mind of her parents at the time of execution of the Will. It may also be noticed that she was given evidence even against her own pecuniary interest. She has no case that neither the first defendant nor his wife exerted any undue influence or coercion or practice any fralid on her parents. The Court below was not justified in rejecting the evidence of DW 3.
15. ' Two other items of evidence on which the Court relied on to find that the Will was not a true and genuine document are Exts. A-2 and B-10 letters. Ext. A-2 was written by the first defendant to the plaintiff herein. This letter was written on 26-12-1981, that is about two months after the execution of the Will. In the letter first defendant had written that the mother was making hell for him to be in the house and she was treating him as an enemy and the life in that house became intolerable and he wanted to shift to some other place and he requested the plaintiff to hand-over possession of the house of the plaintiff at Ernakulam, which was lying vacant. Plaintiff later wrote a letter and he agreed to hand-over the key but the first defendant did not shift his residence. It was contended on behalf of the plaintiff that Ext. A-2 letter showed that even at the time of that letter the mother had been treating the first defendant as an enemy so there could not have been a Will executed by them. Counsel for the appellants submitted that Thailambal was an aged woman and she must have been picking up quarrel occasionally and during that time first defendant must have written this letter. Any way, Ext. A-2 is a letter written subsequent to the execution of the Will. The genuineness of Ext. B-3 Will cannot be decided on the basis of this letter. If the mother had any ill-will subsequently she could have revoked the Will and executed some other document. Even according to DW3, Thailambal was a very capable woman and there is no case that Thailambal executed any subsequent Will. So, Ext. A-2 does not advance the case of the plaintiff.
16. Ext. B-10 is a letter alleged to have been written by Thailambal to the 3rd defendant. Admittedly, Thailambal was illiterate. She must have got written this letter through somebody else. The Court below stated that it was written by the 2nd defendant, but there is no evidence to prove that and even the 3rd defendant when examined as DW 5, has no case that Ext. B-10 letter was written by 2nd defendant. In Ext. B-10 it is stated that the house was in disrepaired condition and if it is to be repaired, the contractor would demand at least Rs. 2 lakhs and if the children required the house, they may come and repair the same. It is submitted that the words used in Ext. B-10 indicated that even on 18-2-1982 the mother Thailambal was treating the property as if it belonged to 4 children. It is difficult to accept the contention of the plaintiff. Firstly, in Ext. B-10, the crucial words are seen to have been made in small letters and it could have been a subsequent interpolation. It may also be noticed that even though this letter was received by him on 18-2-1984 the same' was not produced by the 3rd defendant along with the written statement and the same was produced only at the time of trial. In view of satisfactory evidence regarding proof of Ext. B-3 Will, we do not think that Ext. B-10 letter is sufficient to hold that Ext. B-3 was not a true and genuine document.
17. Learned counsel for the respondents contended that there were several suspicious circumstances and the propounders of the Will did not satisfactorily explain the circumstances. The Court below also observed that Parameswara Iyer and Thailambal were having equal affection towards all the children and they would not have executed Ext. B-3 Will disinheriting all the children except the first defendant. Various facts have been alleged to show that the plaintiff and defendants 3 to 5 were looking after the affairs of the parents and they had great respect and affection towards their parents. It is also pointed out by respondents' counsel that the 5th defendant was not giving anything under Ext. B-3 Will even though she was looking after the affairs of the parents till their death. On the basis of the above facts, it is submitted that there was coercion, fraud and undue influence on the part of the first defendant. It is pointed out that the evidence of DW 1 is highly suspicious and he feigned ignorance about Ext. B-3 Will even though he himself brought the Registrar and scribe to the house and played a dominant role in executing the Will.
18. Based on the above circumstances, it is contended that there was undue influence by defendants 2 and 3 and the testators were not free agents in executing the Will. "Undue influence" is defined under Section16 of the Indian Contract Act, which reads as follows :
"16. "Undue influence" defined.-- (1)A contract is said to be induced by "undue influence" where the relations subsisting between the parties are such that one of the parties is in a position to dominate the Will of the other and uses that position to obtain an unfair advantage over the other.
(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the Will of another----
(a) where he holds a real or apparent authority over the other or where he stands in a fiduciary relation to the other; or
(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
(3) Where a person who is in a position to dominate the Will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the Will of other".
19. The Supreme Court of India in Ladli Prasad v. Karnal Distillery Co. Ltd. (1964 (1) SCR 270 at 300) : (AIR 1963 SC 1279) held that the concept of undue influence defined under Section16 of the Contract Act is based on the principles of English Common Law.
20. In Allcard v. Skinner (1887) 36 Ch D 145 at 183, Lindley, LJ observed thus :
"The undue influence which Courts of Equity endeavour to defeat is the undue influence of one person over another; not the influence of enthusiasm on the enthusiast who is carried away by it, unless indeed such enthusiasm is itself the result of external undue influence."
21. The extent and scope of undue influence in probate proceedings is explained in a decision reported in Hall v. Hall (1868) LR 1 P&D 481 at 482. Sir J. P. Wilde summed up to the jury:
"To make a good Will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, these are all legitimate and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid Will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator's judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of someone else's."
22. The facts and evidence in this case are to be appreciated in the light of the general law. It is true that first defendant might have played a dominant role in executing the Will. That is evident from the fact that one of the attestors to the Will was his friend and it was he who brought the Registrar and Scribe to his house on the date of execution of the Will. But these are not sufficient to hold that Parameswara Iyer and Thailambal were not free agents and they were under the supervening influence of defendants 1 and 2. Both Parameswara Iyer and Thailambal had no symptoms of any sort of mental impairedness. Parameswara Iyer was afflicted with Filariasis and cataract and Thailambal was having complaints of chest pain and asthama. There is no evidence that they were immobile or senile and that these physical ailments affected their mental faculties and both of them died much after the execution of the Will.
23. There is evidence to show that the testators themselves have taken their own decision in the matter of executing the Will. They made frequent consultation with their lawyer and the transaction also is on the face of it not unconscionable. Fifth defendant was given 'Streedhanam' at the time of her marriage. Testators have directed that other brothers of first defendant must be paid Rs. 8,000/- each by the first defendant. It is admitted by all parties that first defendant had been staying all along in the family house and he was looking after the aged parents. Plaintiff had sent several amounts to the 5th defendant and others and these amounts were used for purchase of properties in the name of plaintiff and his wife. Therefore, the terms of the Will cannot be said to be unconscionable thereby shifting the burden of proof to the legatees to prove that there was no undue influence or other vitiating elements. It may be noticed that even if it is assumed that there was persuasion or appeals to the affection to a sentiment of gratitude it cannot be termed as undue influence. There is nothing in evidence to show that defendants 1 and 2 tried to overpower the volition of the testators. There is also no evidence to show that they exerted any pressure of whatsoever character or influenced the testators' discretion and their wishes were overborne by such pressure or inducement. It is proved that the Will is the offspring of testators' own volition.
24. The Court below has seriously erred in holding that execution of the Will was not proved satisfactorily. We reverse that finding and hold that Ext. B-3 Will is true and genuine and the property devolved on the legatees, the defendants 1 and 2 in the suit. The plaintiff and defendants 3 and 4 have got right to recover Rs. 8,000/- each from the first defendant. Even though it is not specifically prayed for in the suit as an alternative relief, that being lesser relief, we grant the same.
25. There shall be a decree to the effect that the plaintiff and defendants 3 and 4 are entitled to recover a sum of Rs. 8,000/.- each from the first defendant. First defendant is directed to pay the amount to the plaintiff and defendants 3 and 4 within two months and if there is any failure to pay the amount they are entitled to recover the same by execution.
Subject to the above, reliefs prayed for in the suit will stand rejected. Appeal is disposed of accordingly. As the parties are near relatives, they shall bear their respective costs.